ONCA – Doctor Billing info not private

Source – Ontario Medical Association v. Ontario (Information, 2018 ONCA 673 (CanLII)

Excerpt follows, with emphasis added

[1]         A reporter for the Toronto Star requested access to information from the Ministry of Health and Long-Term Care (the “Ministry”) pursuant to the Freedom of Information and Protection of Privacy ActR.S.O. 1990, c. F.31 (the “Act”). She sought access to the names of the top 100 physician billers to the Ontario Health Insurance Program (“OHIP”) for the 2008 to 2012 fiscal years and a breakdown of the physicians’ medical specialties and the dollar amounts billed.

[2]         An adjudicator assigned by the Information and Privacy Commissioner (the “IPCO” and the “Adjudicator”) directed the Ministry to disclose the physicians’ names, the amounts billed and the physicians’ fields of specialization, if applicable. The Divisional Court upheld the Adjudicator’s order on judicial review.

[3]         The Ontario Medical Association (“OMA”) and two groups of physicians now appeal. They argue that a physician’s name is “personal information” and thereby exempt from disclosure by s. 21(1) of the Act.

[4]         Section 21(1) states, in part: “A head shall refuse to disclose personal information to any person other than the individual to whom the information relates” (emphasis added). Section 21(1)(f) of the Act permits disclosure of personal information “if the disclosure does not constitute an unjustified invasion of personal privacy.”

[5]         Section 2(1) of the Act defines “personal information” as follows:

2 (1) In this Act,

“personal information” means recorded information about an identifiable individual, including,

(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(h) the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

(3) Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

Decisions Below

[6]         The Adjudicator determined that the requested information did not constitute “personal information” within the meaning of s. 2(1) and, therefore, the s. 21(1) exemption from disclosure did not apply.

[7]         In analyzing whether the records at issue constituted personal information, the Adjudicator applied the two-step test set out in Order PO-2225; Ontario (Rental Housing Tribunal), [2004] O.I.P.C. No. 8:

(1) In what context do the names of the individuals appear?

(2) Is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the individual?


[10]      The Divisional Court determined that the Adjudicator’s decision was reasonable and dismissed the application for judicial review.

Analysis

[11]      On appeal to this court, the appellants agree that the standard of review is reasonableness and that it was appropriate for the Adjudicator to apply the two-step test from Ontario (Rental Housing Tribunal).


[14]      We agree with the Divisional Court’s conclusion that the Adjudicator was not bound by the principle of stare decisis. As Iacobucci J. explained in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC)[1995] 2 S.C.R. 929, at para. 14:

Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate.

[15]      We also agree with the Divisional Court that the Adjudicator did not ignore the prior IPCO decisions. He made specific reference to these earlier decisions and observed that there was a split in the IPCO’s jurisprudence. His decision addressed this dichotomy.


[20]      As the Supreme Court made clear in Bell ExpressVu Limited Partnership v. Rex2002 SCC 42 (CanLII)[2002] 2 S.C.R. 559, at para. 62, when interpreting a statute, Charter values are only considered in circumstances of “genuine ambiguity”. Far from being ambiguous, the purposes of the Act are clearly set out in s. 1:

1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific, and

(iii) decisions on the disclosure of government information should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.


[25]      The Adjudicator applied the second step of the test from Ontario (Rental Housing Tribunal) which involves looking to the nature of the information to determine if it would “reveal something of a personal nature about the individual”. The information sought was the affected physicians’ gross revenue before allowable business expenses such as office, personnel, lab equipment, facility and hospital expenses. The evidence before the Adjudicator indicated, however, that, in the case of these 100 top billing physicians, those expenses were variable and considerable. As a result, applying the second part of the Ontario (Rental Housing Tribunal) test, the Adjudicator concluded that disclosure of this billing information would not reveal something of a personal nature about the physician and was therefore not personal information.

[26]      In our view, where, as here, an individual’s gross professional or business income is not a reliable indicator of the individual’s actual personal finances or income, it is reasonable to conclude not only that the billing information is not personal information as per s. 2(1), but also that it does not describe “an individual’s finances [or] income”, for the purpose of s. 21(3)(f). As a result, we are not persuaded that s. 21(3)(f) demonstrates that the Adjudicator erred in concluding that the billing information was not personal information.

Conclusion

[27]      For these reasons, the appeal is dismissed with costs of $25,000.00 all-inclusive to the respondents in accordance with the agreement between the parties.

“Alexandra Hoy J.A.”

“Paul Rouleau J.A.”

“M.L. Benotto J.A.”


2 thoughts on “ONCA – Doctor Billing info not private

    1. In this decision our Court of Appeal upheld the decision below, how much our publicly funded doctors are raking in, and who’s raking in the most for what?
      What kills me about our tribunal level stuff that people don’t seem to get is “Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate.” they don’t have follow the law!! Why, it’s exactly like a system that was designed to be unfair from it’s inception, bullshit, bullshit out, but then, they get to make findings of fact, truly disturbing, this Just us.

      Liked by 1 person

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